Skip to content

Multiple Constitutional Challenges to ICWA

Case Name: Brackeen v. Haaland (5th Cir. 2021) 994 F.3d 249, cert. granted 2/28/2022
Case #: 21-376, 21-377, 21-378, 21-380
Last Updated: June 15, 2023

The U.S. Supreme Court granted certiorari in four related ICWA cases. They were consolidated for briefing and oral argument. Filings and activity in the cases was reflected on the docket for Haaland v. Brackeen, case number 21-376. All the cases sought review of the Fifth Circuit’s decision in Brackeen v. Haaland (5th Cir. 2021) 994 F.3d 249, cert. granted 2/28/2022 (21-376, 21-377, 21-378, 21-380).)

Question presented in Haaland v. Brackeen, case number 21-376:

Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq., “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” 25 U.S.C. 1902. The provisions of 25 U.S.C. 1912 establish minimum federal standards for the removal of Indian children from their families, while 25 U.S.C. 1915(a) and (b) establish default preferences for the placement of such children in adoptive or foster homes. The statute also contains several recordkeeping provisions. See 25 U.S.C. 1915(e), 1951(a).

Three States and seven individuals brought suit, asserting that these and other ICWA provisions are facially unconstitutional. The district court agreed and granted declaratory relief. The en banc court of appeals rejected most of the plaintiffs’ challenges, but affirmed, in some respects by an equally divided vote, the judgment declaring the foregoing provisions invalid.

The questions presented are:

1. Whether various provisions of ICWA–namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915 (a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a)–violate the anticommandeering doctrine of the Tenth Amendment.

2. Whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families,” 25 U.S.C. 1915(a)(3), and for “Indian foster home[s],” 25 U.S.C. 1915(b)(iii).

3. Whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.

Question presented in Cherokee Nation v. Brackeen, case number 21-377:

In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) to remedy the “alarmingly high percentage of Indian families [being] broken up by the removal, often unwarranted, of their children by nontribal public and private agencies.” 25 U.S.C. §1901(4). Over the ensuing four decades, state courts have repeatedly sustained ICWA as constitutional, and child-welfare professionals now regard ICWA’s procedural and substantive requirements as the gold standard for child welfare. Below, however, the district court struck down much of ICWA. And while the en banc Fifth Circuit rejected most of the district court’s reasoning, a sharply divided court invalidated several ICWA provisions. The en banc court also affirmed, by an equally divided court, the district court’s judgment invalidating several additional provisions.

The questions presented are:

1. Did the en banc Fifth Circuit err by invalidating six sets of ICWA provisions–25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a)–as impermissibly commandeering States (including via its equally divided affirmance)?

2. Did the en banc Fifth Circuit err by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection?

3. Did the en banc Fifth Circuit err by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. § 1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari, 417 U.S. 535 (1974)?

Question presented in Texas v. Haaland, case number 21-378:

The Indian Child Welfare Act, 25 U.S.C. §§ 1901-63 (ICWA), creates a child custody regime for “Indian children,” a status defined by a child’s genetics and ancestry. This regime is designed to make the adoption of Indian children by non-Indians more difficult. To implement this race-based system, Congress required state agencies to provide services “to prevent the breakup of the Indian family” and imposed a placement hierarchy–which may be changed at a child’s tribe’s direction–favoring Indian-child adoptions by the child’s biological relatives, the child’s tribe, and then any other Indian. Congress then directed state courts to employ a detailed federal set of procedures in state-law Indian-child-custody proceedings.

The questions presented are:

1. Whether Congress has the power under the Indian Commerce Clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian.

2. Whether the Indian classifications used in ICWA and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee.

3. Whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring States to implement Congress’s child-custody regime.

4. Whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.

Question presented in Brackeen v. Haaland, case number 21-380:

State child-custody proceedings generally are governed by state law, with placement decisions based on the child’s best interests. The Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C. §§ 1901-1963, however, dictates that, in any custody proceeding “under State law” involving an “Indian child,” “preference shall be given” to placing the child with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families” rather than with non-Indian adoptive parents. Id. § 1915(a); see also id. § 1915(b). The en banc Fifth Circuit fractured over the constitutionality of the placement preferences, affirming in part the lower court’s decision striking them down as unconstitutional.

The questions presented are:

1. Whether ICWA’s placement preferences–which disfavor non-Indian adoptive families in child- placement proceedings involving an “Indian child” and thereby disadvantage those children–discriminate on the basis of race in violation of the U.S. Constitution.

2. Whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement–the “virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 393, 404 (1975)–and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.

U.S. Supreme Court’s decision:

The Indian Child Welfare Act (ICWA) is consistent with the authority granted to Congress by Article I of the Constitution. In three challenges, a birth mother, foster and adoptive parents, and the State of Texas challenged ICWA on multiple constitutional grounds. The federal district court granted petitioners’ motion for summary judgment and a divided Fifth Circuit reversed. After rehearing the case en banc, the Fifth Circuit affirmed in part and reversed in part. The U.S. Supreme Court granted certiorari, affirming the judgment of Fifth Circuit regarding Congress’s constitutional authority to enact ICWA. ICWA aims to keep Indian children connected to Indian families. Congress’s power to legislate with respect to the Indian tribes is “plenary and exclusive.” The Indian Commerce Clause authorizes Congress “[t]o regulate Commerce . . . with the Indian Tribes.” This clause has been interpreted to reach not only trade, but certain “Indian affairs” too. Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power. There is no family law carveout to the Indian affairs power and thus, ICWA is consistent with Article I.

ICWA does not violate the anticommandeering clause of the Tenth Amendment. The U.S. Supreme Court reversed the Fifth Circuit’s holding as to the anticommandeering claims. Petitioners alleged that the ICWA subsection which requires “active efforts” to provide services designed to prevent the breakup of the Indian family violates the Tenth Amendment’s anticommandeering clause. This argument fails because the subsection applies to both private individuals as well as government entities. Legislation that applies evenhandedly to state and private actors does not typically implicate the Tenth Amendment. Petitioners’ argument that ICWA’s placement preferences order state agencies to perform a “diligent search” for placements that satisfy ICWA’s hierarchy fails because when Congress enacts a valid statute, state law is preempted to the extent of any conflict with a federal statute. Petitioners further argued that the ICWA record keeping provisions of section 1951(a), which require courts to provide the Secretary of the Interior with a copy of the final order in the adoptive placement of any Indian child, is improper because Congress cannot conscript the States into federal service by assigning them recordkeeping tasks. However, ancillary recordkeeping requirements do not violate the anticommandeering doctrine because they are a logical consequence of our system of “dual sovereignty” in which state courts are required to apply federal law.

The parties lack standing to bring their equal protection challenges to ICWA. According to petitioners, ICWA’s hierarchy of preferences erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group. However, petitioners have not shown that this injury is likely to be redressed by judicial relief. The state officials who implement ICWA are not parties to this suit. A declaratory judgment would be improper because redressability requires that the court “be able to afford relief through the exercise of its power, not through the persuasive effect of an opinion explaining the exercise of its power.” Additionally, the State of Texas lacks standing to challenge the placement preferences because it has no equal protection rights of its own and it cannot assert equal protection claims on behalf of its citizens.

Concurring opinions: Justice Gorsuch wrote a concurrence, which Justices Sotomayor and Jackson joined; Justice Kavanaugh wrote a concurring opinion in which he states there may be a serious equal protection issue with ICWA, which remains undecided.

Dissenting opinions: Justices Thomas and Alito both filed dissenting opinions.

This case was decided on 6/15/2023.

Link to Article